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2009 DIGILAW 851 (PNJ)

Rajiv Kumar v. State of Punjab

2009-05-01

SHAM SUNDER

body2009
JUDGMENT SHAM SUNDER, J 1. This appeal is directed against the judgment of conviction, and the order of sentence dated 24.02.1997, rendered by the Court of Additional Sessions Judge, Gurdaspur, vide which it convicted the accused (now appellants), and sentenced them as under:- Names of the The offence for Sentence awarded accused (now which conviction appellants) was recorded. Rajiv Kumar U/S. 307 IPC Rigorous imprisonment for five years. Fine of Rs.1000/-. In default of payment of fine, to undergo rigorous imprisonment for three months. Rajiv Kumar U/S. 324 IPC Rigorous imprisonment for one year. Fine of Rs.500/-. In default of payment of fine, to undergo rigorous imprisonment for two months. Rajiv Kumar U/S.323/34IPC Rigorous imprisonment for six months. Fine of Rs.200/-. In default of payment of fine, to undergo rigorous imprisonment for one month. Ravinder Kumar U/S.307/34IPC Rigorous imprisonment for five years. Fine of Rs.1000/-. In default of payment of fine, to undergo rigorous imprisonment for three months. Ravinder Kumar U/S. 323 IPC Rigorous imprisonment for six months. Fine of Rs.200/-. In default of payment of fine, to undergo rigorous imprisonment for one month. Ravinder Kumar U/S.324/34IPC Rigorous imprisonment for one year. Fine of Rs.500/-. In default of payment of fine, to undergo rigorous imprisonment for two months. The substantive sentences of both the accused were ordered to run concurrently. 2. The facts, in brief, are that, on 29.07.1992 at about 2.30 PM Vijay Kumar along with his brother-in-law Prem Chand, was sitting in the shop of the latter. Gama Dhodi and Ravinder Kumar, accused were quarreling over dispute of money. Vijay Kumar and Prem Chand went to that place. Vijay Kumar got the matter compromised between Gama and Ravinder Kumar, accused. Thereafter, Vijay Kumar left that place. Rajiv Kumar alias Nita, accused, started abusing Vijay Kumar. Vijay Kumar asked Rajiv Kumar to desist from abusing him. Ravinder Kumar gave a Khauncha ( an instrument for stirring milk) blow on the left arm below the elbow of Vijay Kumar. Rajiv Kumar alias Nita brought 'Datar' from his house, and gave a blow with the same on the head of Vijay Kumar, on the left side. On receipt of this injury, Vijay Kumar fell down. Again, Ravinder Kumar, accused gave a datar blow on the head of Vijay Kumar. Vijay Kumar became unconscious. The occurrence was witnessed by Satish Kumar and Prem Chand. The accused ran away with their respective weapons. On receipt of this injury, Vijay Kumar fell down. Again, Ravinder Kumar, accused gave a datar blow on the head of Vijay Kumar. Vijay Kumar became unconscious. The occurrence was witnessed by Satish Kumar and Prem Chand. The accused ran away with their respective weapons. The injured was taken to Civil Hospital, Gurdaspur, where he was medicolegally examined. 3. On 29.07.1992 and 30.07.1992, the injured was declared unfit to make statement. Surjit Singh, Sub Inspector, recorded the statement of Prem Chand, eye witness. He appended his endorsement Ex.PW9/A, on the basis whereof, the FIR was registered. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 4. On their appearance, in the Committing Court,the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 307, 307/34, 324, 324/34, 323 and 324/34 of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. Harbhajan Ram, Emergency Medical Officer, (PW-1), who medicolegally examined Vijay Kumar s/o Dharam Vir, Vijay Kumar, injured (PW-2), Prem Chand, an eye witness, (PW-3),Janak Singh, Draftsman, (PW-4), who prepared the scaled map Ex.PG, Gurbachan Lal, (PW-5), who converted the offence into one under Section 307 IPC from 324 IPC after receipt of the x-ray report, Dr. Ashok Mahajan, Surgical Specialist, (PW-6), who declared the injuries dangerous to life, Dr. H.S. Bajwa, Medical Officer, (PW-7), who conducted x-ray of the skull of Vijay Kumar, injured, Prabh Dev Singh, Sub Inspector, (PW-8), who submitted the report under Section 173 of the Code of Criminal Procedure, Surjit Singh, Sub Inspector, (PW-9) the Investigating Officer, Sansar Chand, Assistant Sub Inspector, (PW-10), who recorded the statement of Vijay Kumar, injured on 01.09.1992 and Sukhdev Singh, Constable, (PW-11), who handed over the special report to the Illaqa Magistrate. Thereafter, the Additional Public Prosecutor for the State, after giving up Satish Kumar, PW, as unnecessary, closed the prosecution evidence. 6. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Thereafter, the Additional Public Prosecutor for the State, after giving up Satish Kumar, PW, as unnecessary, closed the prosecution evidence. 6. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Ravinder Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that some un-known persons caused injuries to Vijay Kumar, but he was wrongly involved in the instant case. 6-A. Rajiv Kumar, accused, also took up the same plea as was taken up by Ravinder Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure. They, however, did not lead any evidence, in defence. 7. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused (now appellants), as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants submitted that no offence, punishable under Section 307 of the Indian Penal Code was made out, from the evidence, produced by the prosecution. He further submitted that the trial Court was wrong in recording conviction and awarding sentence for the said offence. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Dr. Harbhajan Ram, Emergency Medical Officer, (PW-1), medicolegally examined Vijay Kumar son of Dharam Vir, injured and found the following injuries on his person:- 1. Lacerated wound 5 cm x 5 cm on the anterior surface of middle third of left forearm. Tenderness present. Advised x-ray. 2. Incised wound 5 cm x 1 cm x 0.2 cm on left side of skull about 1 cm from frontal hair line. Bleeding present from wound. Advised x-ray. 3. Incised wound 2 cm x 0.5 cm x 0.5 cm on the middle third of left forearm just on left of injury no.1. Profuse bleeding from wound present.” Injury no.2, referred to above, on the skull of Vijay Kumar, injured, was declared to be dangerous to life, whereas injury nos. Bleeding present from wound. Advised x-ray. 3. Incised wound 2 cm x 0.5 cm x 0.5 cm on the middle third of left forearm just on left of injury no.1. Profuse bleeding from wound present.” Injury no.2, referred to above, on the skull of Vijay Kumar, injured, was declared to be dangerous to life, whereas injury nos. 1 and 3, were declared simple in nature. According to this Doctor, injury nos. 2 and 3 were caused by sharp edged weapon, whereas injury no.1 was caused by a blunt weapon. According to Dr.Ashok Mahajan, Surgical Specialist, (PW-6), C.T. Scan of the brain of Vijay Kumar showed intra-cerebral hemorrhage contusions with depressed fracture walt left side. He further stated that this injury was dangerous to life. This injury on the head was caused with datar by Rajiv Kumar, accused. Vijay Kumar, injured, became unconscious. Vijay Kumar, injured-cum eye-witness, (PW-2),in clear cut-terms stated that he regained his consciousness after three days. It was further stated by him that he regained his speaking power after 22 days of the occurrence. The principle of law, laid down, in State of Maharashtra v. Balram Vama Patil, AIR 1983, SC-305, was to the effect that to convict under Section 307 of the Indian Penal Code, it is not necessary to show that the bodily injury capable of causing death was inflicted, but what the Court has to see, whether the act irrespective of its result, was done with the intention or knowledge and, under such circumstances, mentioned in this Section. Attempt need not be an ultimate act. It is sufficient, if there is an intent, coupled with some overt-act, in execution thereof. Keeping this principle of law, in view, now let us see, whether the prosecution has been able to prove that the accused committed an offence, punishable under Section 307 of the Indian Penal Code or not. Head is a vital part of the body. If any injury on the head is caused with datar with force, then the person, who caused the same, knows very well the consequences which may ensue. Both the doctors aforesaid declared the injury on the skull of Vijay Kumar, injured, as dangerous to life. As stated above, the injured regained power of speaking after 22 days of the occurrence. He remained unconscious for three days. There was depressed fracture walt on the left side of Vijay Kumar. Both the doctors aforesaid declared the injury on the skull of Vijay Kumar, injured, as dangerous to life. As stated above, the injured regained power of speaking after 22 days of the occurrence. He remained unconscious for three days. There was depressed fracture walt on the left side of Vijay Kumar. Even otherwise, there was motive with the accused to cause injuries on the person of Vijay Kumar, as they were not happy with the compromise, which was got arrived at by him, between the accused and the another person, sometime before the occurrence. While determining, as to whether, an offence, punishable under Section 307 of the Indian Penal Code, is made out or not, the intention of the assailants, the weapons being wielded by them, the seats of the injuries and the nature of the injures, are required to be taken into consideration. In the instant case, when all these factors, are taken into consideration, only one and one inescapable conclusion, that can be arrived at, is that Rajiv Kumar, accused, committed an offence, punishable under Section 307 of the Indian Penal Code , whereas Ravinder Kumar, co-accused, committed an offence, punishable under Section 307 read with Section 34 of the Indian Penal Code. The trial Court was also right in coming to such a conclusion. This Court, after re-appraisal of the evidence, produced by the prosecution, also comes to the same conclusion. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that there was delay of one day, in lodging the first information report, which remained unexplained, as a result whereof, the possibility of concoction of story, false implication of the accused and introduction of false witnesses could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The occurrence, in this case, took place on 29.07.1992 at about 2.30 PM. Immediately, after the occurrence, the injured was taken to the hospital and was admitted in the emergency ward. As is evident from the statement of Dr. Ashok Mahajan, Surgical Specialist (PW-6), the patient was discharged on 28.08.1992. The occurrence, in this case, took place on 29.07.1992 at about 2.30 PM. Immediately, after the occurrence, the injured was taken to the hospital and was admitted in the emergency ward. As is evident from the statement of Dr. Ashok Mahajan, Surgical Specialist (PW-6), the patient was discharged on 28.08.1992. He further stated that the patient remained semi-conscious for the first three days and then he was conscious, but not oriented in time and space, till 17.08.1992. In the first instance, the Investigating Officer tried to record the statement of the injured, but when the doctor declared him unfit to make statement, left with no alternative, he recorded the statement of Prem Chand, eye witness, on 30.07.1992, on which, the Police proceedings were completed at 10.30 AM and the FIR was registered. The first and foremost concern of the kith and kin of the injured, was to take him to the hospital to provide him the best medical aid, so as to save his life. Since the condition of Vijay Kumar, was precarious on account of dangerous to life injury, having been caused on his head by the accused, Prem Chand, eye witness, must be completely puzzled and perplexed. In such a situation, it is not at all possible for a person to take the decision on the spur of the moment as to what further action is required to be taken. The delay, thus, in lodging the first information report, stood explained. Even otherwise, mere delay in lodging the first information report, in itself, is not sufficient to throw away the case of the prosecution over-board. In the face of un-explained delay, in lodging the first information report, the Court is required to scrutinize the evidence of the prosecution witnesses carefully and cautiously. If the Court comes to the conclusion after careful and cautious scrutiny, that the evidence is reliable and trust worthy, then delay in lodging the first information report pails into insignificance. In the instant case, the evidence of Vijay Kumar, injured, (PW-2) and Prem Chand, eye witness, (PW-3) is trust worthy. The ocular evidence was duly corroborated by the medical evidence. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail and is rejected. 12. No other point, was urged, by the Counsel for the parties. 13. The ocular evidence was duly corroborated by the medical evidence. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail and is rejected. 12. No other point, was urged, by the Counsel for the parties. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 24.02.1997, are upheld. If the appellants are on bail, their bail bonds, shall stand cancelled. 15. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C. and compliance report be sent within two months. 16. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame. 17. The Registry shall keep track of the matter, and put up the compliance report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the same. Order accordingly.